104 F.

3d 316
97 CJ C.A.R. 85

Susan Lynn ROBERTS, Plaintiff-Appellant,

v.
Charles Timothy KLING, Defendant-Appellee.
No. 95-2272.

United States Court of Appeals,

Tenth Circuit.
Jan. 6, 1997.

William L. Lutz and Hugh T. Brower of Martin, Lutz & Brower, P.C., Las
Cruces, NM, for Plaintiff-Appellant.
Mark D. Jarmie of Sharp, Jarmie, & Scholl P.A., Albuquerque, NM, for
Defendant-Appellee.
Before PORFILIO, ALARCON,* and LUCERO, Circuit Judges.
JOHN C. PORFILIO, Circuit Judge.

I. INTRODUCTION
1

Plaintiff Susan Lynn Roberts appeals from the district court's grant of summary
judgment to defendant on her civil rights complaint, filed pursuant to 42 U.S.C.
1983. She challenges as legal error the district court's grant of absolute
immunity, and alternatively, qualified immunity, to defendant. We have
jurisdiction over this appeal under 28 U.S.C. 1291.1 Our review of the district
court's summary judgment decision is de novo, applying the same legal
standards as those employed by the district court to determine whether a
genuine issue of material fact precludes summary judgment, and, if not,
whether the moving party is entitled to judgment as a matter of law. See Wolf
v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995).

The underlying facts are undisputed. Defendant, then an investigator for the
District Attorney's office in the Third Judicial District of New Mexico,

investigated allegations that plaintiff had failed to return her children to the
custody of their father in violation of a court order. Defendant subsequently
signed and filed a criminal complaint against plaintiff before a magistrate in
Dona Ana County, New Mexico, and obtained a warrant for plaintiff's arrest.
Plaintiff was arrested in Oregon and extradited to New Mexico for trial. Five
months after her preliminary hearing, plaintiff moved to dismiss the charges
against her on jurisdictional grounds. The state trial judge dismissed the case
and his decision was affirmed on appeal. In her civil rights complaint against
defendant, plaintiff contended, in relevant part, that defendant knowingly and
wilfully executed the criminal complaint based on false and misleading factual
allegations, resulting in the issuance of a warrant for her arrest.2
3

Defendant contended he was immune from plaintiff's suit, and the district court
agreed. The district court concluded that defendant was entitled to absolute
prosecutorial immunity, holding that defendant's actions in swearing out a
complaint and seeking an arrest warrant were "functionally initiating a criminal
prosecution." Appellant's App. at 81. Further, the court held that defendant was
also entitled to qualified immunity. See id. at 89.

II. ABSOLUTE IMMUNITY

A.
4

Absolute immunity "defeats a suit at the outset, so long as the official's actions
were within the scope of the immunity." Imbler v. Pachtman, 424 U.S. 409, 419
n. 13, 96 S.Ct. 984, 989 n. 13, 47 L.Ed.2d 128 (1976). Under the "functional
approach" adopted by the Supreme Court, " 'we examine the nature of the
functions with which a particular official or class of officials has been lawfully
entrusted, and we seek to evaluate the effect that exposure to particular forms of
liability would likely have on the appropriate exercise of those functions.' "
Spielman v. Hildebrand, 873 F.2d 1377, 1381 (10th Cir.1989)(quoting
Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555
(1988)). In other words, absolute immunity " 'is justified and defined by the
functions it protects and serves, not by the person to whom it attaches.' " Mee v.
Ortega, 967 F.2d 423, 425 (10th Cir.1992)(quoting Forrester, 484 U.S. at 227,
108 S.Ct. at 544).

In Imbler v. Pachtman, the Supreme Court held that state prosecutors are
entitled to absolute immunity from 1983 suits for activities within the scope
of their prosecutorial duties. 424 U.S. at 420, 96 S.Ct. at 990. The Supreme
Court defined the activities deserving of immunity as those "intimately
associated with the judicial phase of the criminal process," such as "initiating a

prosecution and ... presenting the State's case." Id. at 430-31, 96 S.Ct. at 995.
Similarly, this court has noted that the analysis of prosecutorial immunity is
based on a continuum: "the more distant a function is from the judicial process
and the initiation and presentation of the state's case, the less likely it is that
absolute immunity will attach." Gagan v. Norton, 35 F.3d 1473, 1475 (10th
Cir.1994)(further quotation omitted).
6

" 'Although identifying those acts entitled to absolute immunity is not always
easy, the determinative factor is "advocacy" because that is the prosecutor's
main function and the one most akin to his quasi-judicial role.' " Spielman, 873
F.2d at 1382(quoting Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.1985) and
citing Meade v. Grubbs, 841 F.2d 1512, 1532 (10th Cir.1988)); see Gagan, 35
F.3d at 1475; Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th
Cir.1991). In contrast, when a prosecutor acts in an administrative or
investigative capacity, those activities are entitled to qualified immunity only.
See England v. Hendricks, 880 F.2d 281, 285 (10th Cir.1989)(citing Meade,
841 F.2d at 1532).

The district court's decision that defendant is entitled to absolute immunity is a

question of law which we review de novo. See England, 880 F.2d at 285. In this
case, we think it is clear that defendant's actions in swearing out a complaint
against plaintiff were prosecutorial in nature. He was initiating a judicial
proceeding as part of the District Attorney's office.3 See Snell v. Tunnell, 920
F.2d 673, 693 (10th Cir.1990)(filing charges was act "within the continuum of
initiating and presenting a criminal case"); Lerwill v. Joslin, 712 F.2d 435, 437
(10th Cir.1983)("filing a criminal complaint ... was clearly an initiation of a
prosecution").

B.
8

The Supreme Court has recognized that prosecutorial functions may also
involve some activities preliminary to the initiation of an action, including
actions away from the courtroom. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at
995 n. 33. Because of their connection to the critical judicial role that a
prosecutor plays, those activities are also afforded absolute immunity. See
Pfeiffer, 929 F.2d at 1490 (immunity may attach to even administrative or
investigative acts when necessary for a prosecutor to function as an officer of
court).

The remaining question, then, is whether defendant's act of obtaining an arrest

warrant was performed in his role as an advocate, see England, 880 F.2d at 285,
or, in other words, whether his actions "constituted advocacy functions

sufficiently related to initiating judicial proceedings to justify absolute

immunity." Spielman, 873 F.2d at 1382. One factor, although not always
dispositive, is whether the acts complained of were taken before or after a
determination of probable cause. See Buckley v. Fitzsimmons, 509 U.S. 259,
274 & n. 5, 113 S.Ct. 2606, 2616 & n. 5, 125 L.Ed.2d 209 (1993). Although
plaintiff contends that issues of fact exist as to the District Attorney's decision
regarding probable cause, it is clear that the Chief Deputy District Attorney
signed the complaint before defendant performed any of the acts complained
of.4 The District Attorney's undisputed testimony was that, in signing the
complaint, the Chief Deputy District Attorney was approving the complaint "as
it relates to probable cause." Appellant's App. at 131. Because defendant's
actions followed a probable cause determination, they are more closely
associated with the judicial process and the prosecutorial function of an
advocate for the state.
10

Additionally, "[w]e have held that a critical factor for absolute prosecutorial
immunity 'involves a prosecutor's acts as an advocate before a neutral
magistrate.' " Snell, 920 F.2d at 693 (quoting Lerwill, 712 F.2d at 437).
Plaintiff does not challenge defendant's investigation of the facts, only his
conduct before the magistrate. In Burns v. Reed, 500 U.S. 478, 491-92, 111
S.Ct. 1934, 1941-43, 114 L.Ed.2d 547 (1991), the Supreme Court held that a
prosecutor's appearance and presentation of evidence before a judge to secure a
search warrant was entitled to absolute immunity, concluding that the
prosecutor was acting as advocate for the state and that immunity would serve
the policy of protecting the " 'judicial phase of the criminal process.' " Id. at
492, 111 S.Ct. at 1942 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. at 995).
Similarly, defendant's seeking an arrest warrant before a magistrate is
associated with the judicial process.

11

Finally, the act of obtaining an arrest warrant in conjunction with the filing of a
criminal complaint is functionally part of the initiation of a criminal
proceeding, and therefore prosecutorial in nature. As this court stated in Lerwill
v. Joslin:

12 think that a prosecutor's seeking an arrest warrant is too integral a part of his
[W]e
decision to file charges to fall outside the scope of Imbler. The purpose of obtaining
an arrest warrant is to ensure that the defendant is available for trial and, if found
guilty, for punishment. Without the presence of the accused, the initiation of a
prosecution would be futile. Thus, a prosecutor's seeking a warrant for the arrest of a
defendant against whom he has filed charges is part of his "initiation of a
prosecution" under Imbler.

13

712 F.2d at 437-38.

14

This court has held that "a prosecutor's absolute immunity has extended to his
procurement of an arrest warrant." Lerwill, 712 F.2d at 437.5 We conclude that
defendant is entitled to absolute immunity for seeking an arrest warrant in
connection with the charges being filed against plaintiff under the auspices of
the District Attorney's office. It is clear from the record on appeal that the
purpose of the warrant was to secure plaintiff's presence to defend against the
criminal charges and, as a by-product, to find the children who had not been
returned to their father. The warrant was not investigative or used as the means
to find more information before deciding that the case should be prosecuted,
but was sought at the same time the charges against plaintiff were filed. See
also Snell, 920 F.2d at 693 ("a prosecutor who performs functions within the
continuum of initiating and presenting a criminal case, such as ... seeking an
arrest warrant ... ordinarily will be entitled to absolute immunity"); Pena v.
Mattox, 84 F.3d 894, 896 (7th Cir.1996)(defendant properly claimed absolute
immunity with regard to drafting and authorizing original criminal complaint
and procuring arrest warrant).

C.
15

On appeal, as before the district court, plaintiff contends that the Supreme
Court's opinion in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d
271 (1986) is dispositive here. In Malley, the Supreme Court denied absolute
immunity to a police officer who sought an arrest warrant following his
investigation of the defendants. Plaintiff here asserts that, defendant, a certified
law enforcement officer, should be denied absolute immunity because his acts
were the same as those of the police officer in Malley.

16

We disagree. First, defendant's status as a certified law enforcement officer is

irrelevant to the determination of whether his actions are entitled to immunity,
under the functional approach.6 Second, while defendant's acts in swearing out
a complaint and obtaining a warrant for plaintiff's arrest are closely similar to
the acts which afforded the defendant only qualified immunity in Malley, the
acts themselves are not the focus of the functional approach. Instead, we
examine the function a defendant's acts serve. See Imbler, 424 U.S. at 430, 96
S.Ct. at 994-95 (approving Court of Appeals' focus on "the functional nature of
the activities"); McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir.1987)
(looking to "the nature or function of the ultimate act" in determining
entitlement to prosecutorial immunity); Barr v. Abrams, 810 F.2d 358, 361 (2d
Cir.1987)(analyzing immunity on "functional basis").

17

We are mindful of case law reasoning that different actors performing the same
acts should receive the same level of immunity. See, e.g., Fletcher, 93 F.3d at
655-56. Nonetheless, we think that the proper focus is on the function an act
serves, not the act itself. Further, we think Supreme Court authority supports
this analysis. In Buckley, the Court's opinion indicates that the act of
interviewing witnesses may or may not be entitled to absolute immunity,
depending on the role of the actor: "There is a difference between the
advocate's role in evaluating evidence and interviewing witnesses as he
prepares for trial, on the one hand, and the detective's role in searching for the
clues and corroboration that might give him probable cause." 509 U.S. at 273,
113 S.Ct. at 2616. 7 In Malley itself, the Supreme Court recognized the
distinction between function and conduct, finding unpersuasive the proposed
analogy between a police office seeking an arrest warrant and a prosecutor
seeking an indictment. 475 U.S. at 342-44, 106 S.Ct. at 1096-98. The policy
considerations underlying a grant of immunity focus on the function or role an
individual fulfills in performing certain acts, not on the acts alone. "We have
interpreted 1983 to give absolute immunity to functions 'intimately associated
with the judicial phase of the criminal process,' not from an exaggerated esteem
for those who perform these functions, and certainly not from a desire to shield
abuses of office, but because any lesser degree of immunity could impair the
judicial process itself." Malley, 475 U.S. at 342, 106 S.Ct. at 1097 (quoting
Imbler, 424 U.S. at 430, 96 S.Ct. at 994-95).

III. SUMMARY JUDGMENT

18

Plaintiff also contends that the district court erred when it ignored genuine
issues of material fact which preclude summary judgment on the basis of
absolute immunity. She takes issue with the district court's statements that the
District Attorney had concluded that probable cause existed to believe plaintiff
had violated the applicable statute and that a criminal complaint should be
filed. To support her contention that these matters are genuinely disputed, she
cites to the District Attorney's deposition. She contends that he testified he did
not make a determination that probable cause existed, but determined only that
defendant should investigate further, and he did not instruct defendant to obtain
a warrant for plaintiff's arrest. Therefore, she argues, there is factual dispute "as
to whether [defendant] was functionally initiating a criminal prosecution."
Appellant's Br. at 21.

19

A careful review of the deposition testimony leads us to conclude that

plaintiff's arguments on this point have no merit. The District Attorney did,
indeed, state that he sent defendant to investigate whether probable cause
existed as to each essential element, see Appellant's App. at 131, 138, and that

he had not authorized the filing of a criminal complaint before defendant

investigated the relevant facts, see id. at 133. However, he also testified that if
defendant's investigation corroborated the facts as preliminarily reported, then
there was probable cause to believe a crime had been committed. see id. at 140.
Specifically, he said: "In speaking with [defendant], I instructed him to do the
investigation, sign whatever his investigation revealed, and if they were
consistent with what information was given to me [ ], that would be probable
cause to go forward." Id. He also testified that the information in the Statement
of Facts prepared by defendant was consistent with the information as
preliminarily reported, and that the Chief Deputy District Attorney, "in signing
the criminal complaint, determined, based on his own experience, that there
were sufficient facts alleged to constituted probable cause to file a criminal
complaint." Id.
20

While the District Attorney did not make an actual probable cause
determination before defendant's investigation, once the reported facts were
verified by defendant's investigation, both he and the Chief Deputy District
Attorney believed that probable cause existed to go forward with a criminal
complaint. Therefore it is undisputed that defendant's actions in seeking an
arrest warrant and swearing out a complaint followed a determination of
probable cause within the District Attorney's office.

IV. CONCLUSION
21

Because we conclude that defendant is entitled to absolute prosecutorial

immunity under the facts of this case, we need not address plaintiff's arguments
regarding the district court's alternative holding that defendant would be
entitled to qualified immunity. The judgment of the United States District Court
for the District of New Mexico is AFFIRMED.

Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of

Appeals for the Ninth Circuit, sitting by designation

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument

Plaintiff also alleged in her complaint that defendant violated her constitutional
rights by 1) providing false information to the Federal Bureau of Investigation,
leading to a federal warrant for her arrest, 2) issuing publicity containing false

statements about plaintiff, and 3) making false statements to the media.

However, on appeal she does not challenge the district court's resolution of
these allegations in defendant's favor. Accordingly, she has waived appellate
review of those issues. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979,
984 n. 7 (10th Cir.1994)
3

We note that although defendant was employed as an investigator, under the

functional approach, we focus on the nature of his actions in this case.
Defendant need not be a prosecutor to be afforded prosecutorial immunity; the
immunity extends to those who perform equivalent functions. See Hill v. City
of New York, 45 F.3d 653, 660 (2d Cir.1995)(employees of district attorney's
office); Pfeiffer, 929 F.2d at 1489-90; Meade, 841 F.2d at 1532 n. 18

Defendant signed the criminal complaint as the complainant, and the Chief
Deputy District Attorney signed in the "Approved" section, to indicate approval
by the District Attorney's office. Appellant's App. at 145

The Ninth Circuit has recently called Lerwill into question, noting that it was
issued before current Supreme Court authority on the subject of prosecutorial
immunity. See Fletcher v. Kalina, 93 F.3d 653, 656 n. 3 (9th Cir.1996). Other
circuits continue to cite Lerwill as authority for the proposition that, in seeking
an arrest warrant in connection with filing charges against a defendant, a
prosecutor is functioning as an advocate for the state and is entitled to absolute
immunity. See Pinaud v. Suffolk, 52 F.3d 1139, 1150 (2d Cir.1995); Ehrlich v.
Giuliani, 910 F.2d 1220, 1223 (4th Cir.1990); Myers v. Morris, 810 F.2d 1437,
1446 (8th Cir.1987); Joseph v. Patterson, 795 F.2d 549, 555 (6th Cir.1986). See
also Schrob v. Catterson, 948 F.2d 1402, 1414 (3d Cir.1991)(noting split of
authority regarding absolute immunity "in the context of the prosecutorial
decision to seek an arrest or search warrant,"). We reaffirm our position in
Lerwill because, as discussed below, we conclude it is consistent with the more
recent Supreme Court pronouncements

Plaintiff contends on appeal that the district court ignored the functional test
when, in distinguishing Malley from the present case, it commented that
defendant was not a police officer. Then, in an interesting reverse, plaintiff
appears to argue that defendant's status as a certified law enforcement officer is
a factor in favor of applying Malley. Appellant's Br. at 19. We think plaintiff's
argument misses the mark. Here, the district court noted that plaintiff "was not
a police officer capable of depriving people of valuable rights," but worked
directly for the district attorney. The court then summarized defendant's actions
in this case. The court's analysis clearly did not ignore the functional approach,
but applied it

A majority of cases applying the same act/same immunity analysis cite to

Buckley as authority. See, e.g., Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 30
(1st Cir.1995); Giuffre v. Bissell, 31 F.3d 1241, 1252 (3d Cir.1994). In
Buckley, the Court, quoting the Seventh Circuit, used "same act" language in a
discussion of the various functions that a prosecutor performs. 509 U.S. at 273,
113 S.Ct. at 2615-16. However, the opinion as a whole reflects an emphasis on
function, not conduct alone. Other cases cite to the Supreme Court's opinion in
Burns as support for this kind of analysis, see Schrob, 948 F.2d at 1415 n. 12.
However, the Burns court did not compare like acts in its analysis. The Court
noted: "it is incongruous to allow prosecutors to be absolutely immune from
liability for giving advice to the police, but to allow police officers only
qualified immunity for following the advice." 500 U.S. at 494, 111 S.Ct. at
1944 (emphasis added). The opinion goes on to reject arguments that the act of
giving advice to the police was part of the prosecutorial capacity or closely
associated with the judicial process. Id. at 495-96, 111 S.Ct. at 1944-45. We
conclude that neither Buckley nor Burns is contrary to our reasoning here